Wednesday, October 31, 2012

Dark night: NY ignored years of flood warnings - NY times

Manhattan - dark after Sandy

Read my lips "No new taxes".  Is anyone other than the voters responsible for the Hurricane Sandy disaster?
For years, New York ignored warnings.
by David W. Chen and Mireya Navarro

For nearly a decade, scientists have warned city and state officials that New York faces certain peril: rising sea levels, more frequent flooding and extreme weather patterns. The alarm bells grew louder after Tropical Storm Irene last year, when the city shut down its subway system and water rushed into the Rockaways and Lower Manhattan.
On Tuesday, as New Yorkers woke up to submerged neighborhoods and water-soaked electrical equipment, officials took their first tentative steps toward considering major infrastructure changes that could protect the city’s fragile shores and eight million residents from repeated disastrous damage.
riprap seawall at Brooklyn Bridge Park

Thursday, October 25, 2012

CNOOC faces lawsuit in US over spill disclosure -

"As the repercussions of the June 2011 Bohai Bay oil spill still linger, China's state-owned oil company CNOOC faces a new headache after it was sued by its U.S. investors over its misleading statements issued during the spill.

China's largest offshore oil company said in an announcement posted on its website Tuesday evening that it received notice of the class action suit filed by its U.S. investor Sam Sinay, individually and on behalf of all others similarly situated, in the U.S. District Court for the Southern District of New York.

The plaintiffs accused CNOOC of failing to disclose June 2011's Bohai Bay oil spill in a timely manner and also releasing false and misleading information about its performance and financials.

A CNOOC official refuted Sinay's allegations, saying the company complied with rules and terms concerning information disclosure during the spill."

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Wednesday, October 24, 2012

Lawsuits connected to compounder’s tainted steroids will multiply rapidly, legal specialists say - Business - The Boston Globe

Lawsuits connected to compounder’s tainted steroids will multiply rapidly, legal specialists say - Business - The Boston Globe
by Jay Fitzgerald

"A nationwide meningitis outbreak linked to a Framingham drug compounding pharmacy is likely to cause a flood of lawsuits that could involve physicians, health clinics, hospitals, and others connected in any way with the contaminated medicines, according to legal specialists.

Attorneys representing clients who say they were injected with tainted steroids from New England Compounding Center already have filed at least a dozen lawsuits across the country, accusing it of pharmacy malpractice, general negligence, breach of warranties, and other wrongdoing."

While legal specialists say it’s usually difficult to win claims against health care providers for using faulty medical products they didn’t make, the meningitis outbreak is so large — with more than 250 reported cases, 21 deaths, and potentially thousands of people injected with steroids in 16 states — that widespread suits against New England Compounding and others are all but inevitable.


“You’re really talking about a cascading crisis of claims,” said Michael Rustad, a professor at Suffolk University School of Law. “We’re talking of hundreds of millions of dollars in potential claims."
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Monday, October 22, 2012

CDC - Multistate Meningitis Outbreak

CDC - HAI - Multistate Meningitis Outbreak:
"Meningitis Outbreak Investigation

CDC Responds to Multistate Fungal Meningitis Outbreak
The Centers for Disease Control and Prevention (CDC), in collaboration with state and local health departments and the Food and Drug Administration (FDA), is investigating a multistate fungal meningitis outbreak among patients who received contaminated steroid injections. This form of meningitis is not contagious. The investigation also includes fungal infections associated with injections in a peripheral joint space, such as a knee, shoulder or ankle."


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Vital Task for China's Next Leaders: Fix Environmental Protection - China Real Time Report - WSJ

protest over cancellation of waste water project

The Bohai Bay Oil spill compensation program may provide a model - derived from the Chinese Supreme Court's interpretation of the maritime law . - GWC

Vital Task for China's Next Leaders: Fix Environmental Protection - China Real Time Report - WSJ
By Stanley Lubman
"With China’s once-a-decade leadership transition scheduled to get underway in roughly three weeks, pundits and scholars inside China and out have been debating whether the next generation of leaders has what it takes to pursue the political and economic reforms necessary to address what some see as increasingly dangerous levels of discontent in society.
But if China’s next leaders are genuinely concerned with keeping peace on the streets, there’s a more direct way for them to achieve their goals: Find a way to enforce the country’s environmental regulations.  Chinese authorities’ continued failure to control industrial pollution, combined with the growth of a NIMBY mentality among the country’s ever more affluent citizenry, is proving to be an increasingly dangerous combination. At least twice this year, China saw massive environmental protests escalate into violent clashes with authorities that made international headlines."

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BP Reaches Deal to Sell Russian Assets to Rosneft -

A Rosneft oil rig in Siberia.BP Reaches Deal to Sell Russian Assets to Rosneft - "LONDON — The British energy giant BP said on Monday that it had reached an agreement with the Russian state oil company Rosneft to sell its 50 percent stake in TNK-BP.

Under the terms of the deal, BP would receive $17.1 billion in cash and the rest in Rosneft shares.

“Exactly in line with fair value,” Stuart Joyner, an analyst with Investec in London, said of the price, “which is a good achievement.”

The deal is conditioned on the Russian government selling a 5.7 percent stake in Rosneft to BP for $4.8 billion. With the British company’s existing 1.25 percent stake in Rosneft, the two steps of the transaction would give BP a 19.75 percent stake. The British company says it also expects to have two seats on Rosneft’s nine-member board."

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Sunday, October 21, 2012

Marine stations to go on bay-watch duty|Top News|

Marine stations to go on bay-watch duty|Top News| "Three marine monitoring stations will be established in Bohai Bay in a major anti-pollution project following oil spills, an official said.
The stations, the first of which will be built next year, will be sited along coastal areas in Tianjin, said Zhang Qiufeng, director of the Tianjin Marine Environmental Monitoring Center at the State Oceanic Administration.
"The new stations will monitor the bay, collecting data daily on water temperature, pollution and salt content," Zhang said.
The stations will greatly improve forecasts and help coordinate emergency response measures, such as for an oil spill, Zhang said.
Tianjin currently has only one marine environment monitoring station, in Tanggu at the mouth of the Haihe River, but nearby development means that its ability to monitor the bay area has been diminished.
After a recent series of oil spills from offshore drilling platforms, Zhang said measures are urgently needed to protect Bohai Bay."

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Tuesday, October 16, 2012

90% eligible parties will accept BP spill deal // Fuel fix

Fuel Fix » Most eligible parties will accept spill deal, claims head says
 BP’s multibillion dollar settlement with individuals and businesses affected by the 2010 Gulf of Mexico oil spill doesn’t appear to be in jeopardy as more than 90 percent of those eligible are expected to accept the deal, the claims administrator said Monday.

Lafayette, La. attorney Patrick Juneau, who took over the processing of victims’ claims from Kenneth Feinberg in June, told the Houston Chronicle in an interview Monday that only about 100 to 200 claimants had opted out of the deal as of last week.

The figure is important because BP’s agreement with lawyers for plaintiffs allows the oil giant to withdraw from the deal if too many claimants opt out. BP has not said what that threshold is. Those who don’t opt by a Nov. 1 deadline are part of the class action settlement and cannot pursue separate lawsuits.

U.S. District Judge Carl Barbier of New Orleans, who tentatively approved the deal, has set a hearing to begin Nov. 8 in federal court in New Orleans to assess whether it is fair. Barbier then will decide whether to give it final approval."

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Monday, October 15, 2012 : Warren’s Role in Asbestos Case : Warren’s Role in Asbestos Case: "Massachusetts Sen. Scott Brown and challenger Elizabeth Warren are accusing each other of “not telling the truth.” Brown says Warren worked to “restrict payments” to asbestos victims, while Warren says she worked to “get more money” for them. We find Warren is correct; Brown’s ad is a distortion."

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Thursday, October 11, 2012

Med Mal Damage Cap Upheld by Kansas Supreme Court

Supreme Court Justices
Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Nancy Moritz

Amy C. Miller sued her surgeon Carolyn Johnson, who mistakenly removed Miller's left ovary during a surgery intended to take the right ovary. A Kansas jury awarded her $759,679.74 in damages. But the trial judge reduced that amount by $325,000 because a state law limited non-economic damages to $250,000 in personal injury lawsuits. On October 5 the state Supreme Court upheld the cap in Miller v. Johnson.  The majority analogized the limits to the tradeoffs which justified the removal of workplace injuries to the administrative remedies of workers compensation.  But as the dissent pointed out those remedies do the injured worker some good by providing a sure and swift remedy.

Section 5 of the Kansas Constitution's Bill of Rights protects the right to trial by jury. It states: "The right of trial by jury shall be inviolate." That right is plainly infringed by the damages cap which abrogates the traditional power of the jury to make whole the victim of a tort.  But, the court held, there is no infringement if the Legislature provides an adequate substitute - a quid pro quo.  Here the court found that the statute compelled every physician to carry at least $200,000/claim insurance ($600,000 annual aggregate).  It also created an excess insurance fund.  The measure thus assured "the prospects for recovery of at least the statutory minimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability. This is something many other tort victims do not have."

Justice Carol Beier, in an exhaustive dissent, rejected the holdings, saying that the quid pro quo must be one that serves the person whose individual right is infringed - not just accomplish some general societal good:
I would hold today that an adequate substitute remedy is one that provides an individual benefit to each person in the class of plaintiffs whose constitutional right to remedy is impaired. Section 18 protects an individual right—the right of every person to the remedies that existed at common law for injuries to his or her person, property, or reputation.
JusticeLee  Johnson joined Beier's dissent - adding a populist peroration:
Unfortunately, the most affluent and advantaged people in our society often get what they want at the expense of the least fortunate among us whose voice is not loud enough to be heard. Sometimes, juries and the courts will act as life preservers for these burdened minorities. Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us. 
h/t  Torts Prof Blog

Wednesday, October 10, 2012

BP: More claims, more money - Northwest Florida Daily News

September 7, 2012Objection Deadline
November 1, 2012Opt Out Deadline
November 8, 2012Fairness Hearing
As the November 1 class action opt-out deadline approaches Patrick Juneau - administrator of the court-supervised Deepwater Horizon Settlement fund - has to encourage people to file claims, rather than opt out of the class action settlement and continue the court fight.  But the fund's insistence on back-up documentation has delayed pacceptance of claims, increasing frustration.  There are practical questions: can a hotel prove its damages just by comparing this year to last in a year that was bad for business generally?  Few people canceled - most just never planned to come, they report. - GWC
BP: More claims, more money - Local News - Northwest Florida Daily News: by Tom McLaughlin
"PENSACOLA — “Fifty-eight million in free unadulterated dollars is going to hit” Northwest Florida in the near future, BP Claims Administrator Patrick Juneau announced Tuesday.

Juneau told a group of business people and elected officials that the funds will be used to resolve 1,099 of 11,214 claims filed against BP in the “region around Pensacola.”

Juneau, who on June 4 replaced Ken Feinberg as the man in charge of distributing BP dollars to parties suffering economic or property damage from the 2010 Deepwater Horizon oil spill, also promised more money was on the way.
“There’s going to be millions and millions of dollars,” he predicted during the meeting at Pensacola State College. “What you’re going to see is the number of eligible business claims continue to rise. I think we’ll see many more in the next two weeks.”"...
As of last Thursday, 7,144 claims had been declared eligible, and by Monday more than $422 million was approved for distribution, Juneau said.
Seven thousand remains a far cry from 60,000, Juneau conceded. He said that processing individual claims is being delayed because 90 percent of them don’t include the proper paperwork.
A deadline for parties seeking to opt out of the legal settlement administered by Juneau has been set for Nov. 1.
Jay and Nash Patel, representing 3,000 claims on behalf of the Asian American Hotel Owners Association, told Juneau Tuesday that their group was considering the opt-out.
The hotel group is considering initiating legal action of its own, the Patels said.
The association’s frustration lies with the claims processors’ insistence that owners provide documents proving reservation denials or cancellations, they said.
“We don’t have denials and cancelled reservations,” the Patel said, pointing out that hotel losses were borne out during the oil spill by rooms that simply weren’t filled.

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Tuesday, October 9, 2012

Skydiver Delays 23-Mile Free Fall -

Probably just as well. -gwc
Skydiver Delays 23-Mile Free Fall - "ROSWELL, N.M. (AP) — Extreme athlete Felix Baumgartner canceled his planned death-defying 23-mile free fall Tuesday because of high winds, the second time this week he was forced to postpone his quest to become the world's first supersonic skydiver"

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Friday, October 5, 2012

In a Shuttered Gasoline Can Factory, the Two Sides of Product Liability -

They are classic product liability cases: terrible injuries, careless conduct, and an apparently simple fix. It leads to compromise and to the occasional blockbuster verdict as in the Utah case Calder v. Blitz USA, Inc., in which he jury found Calder 30% at fault and Blitz 70%.  Pouring gasoline on a fire is a terrible idea.  And it gets worse if the flame shoots back to the source and the can explodes.  the defenses of misuse and the user's contributory negligence are obvious.  

But what if there is a simple device - a flame arrester - a piece of wire mesh - that, an engineer explains,  could prevent the explosion?  An alternative safer design, its feasibility, and practicality become the focus of the litigation.  And so it as been for the ironically named Blitz- manufacturers of a familiar object: the red plastic gas can which has gone bankrupt and shut down.   Someone will buy their assets but will not continue their product line for fear of taking on their liabilities too.  The Times presents the story well.  - GWC

In a Shuttered Gasoline Can Factory, the Two Sides of Product Liability -


Crusading against what it considers frivolous lawsuits, the United States Chamber of Commerce has had no shortage of cases to highlight, like the man suing a cruise line after burning his feet on a sunny deck or the mother claiming hearing loss from the screaming at a Justin Bieber concert.  Now, the lobbying group’s Institute for Legal Reform is showing a 30-second commercial that uses Blitz USA, a bankrupt Oklahoma gasoline can manufacturer, to illustrate the consequences of abusive lawsuits. The ad shows tearful workers losing their jobs and the lights going out at the 46-year-old company as a result of steep legal costs from lawsuits targeting the red plastic containers, according to the company and the institute."...
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Monday, October 1, 2012

Argument recap: In search of an ATS compromise : SCOTUSblog

Update: Prof. Alberto Bernabe has collected commentary on argument at his Torts Blog

The plaintiff's Alien Tort Statute case in Kiobel v. Royal Dutch Shell appears to be in grave jeopardy.  There was not much support today at re-argument in the Supreme Court for this claim by a foreign national against a foreign corporation for conduct that occurred entirely outside the United States.  Sonia Sotomayor appeared to embrace the approach urged by the European Commission: that the U.S. courts should provide a "forum by necessity" where there was no remedy where the rights violation occurred.
Argument recap: In search of an ATS compromise : SCOTUSblog:
by Lyle Denniston
Paul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally.  Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed.  And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past

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